FBI wrongdoing persisted even after concerns raised

R. Jeffrey Smith, John Solomon, Washington Post

Published 4:00 am, Sunday, March 18, 2007

2007-03-18 04:00:00 PDT Washington -- FBI counterterrorism officials continued to use flawed procedures to obtain thousands of U.S. telephone records during a two-year period when bureau lawyers and managers were raising escalating concerns about the practice, according to senior FBI and Justice Department officials and documents.

FBI lawyers raised the concerns beginning in late October 2004 but did not closely scrutinize the practice until last year, FBI officials acknowledged. They also did not understand the scope of the problem until the Justice Department launched an investigation, FBI officials said.

Under pressure to provide a stronger legal footing, counterterrorism agents at that point wrote new demands for the information the bureau already possessed. At least one senior FBI headquarters official -- whom the bureau declined to name -- signed these "national security letters" without including the required proof that the letters were linked to FBI counterterrorism or espionage investigations, an FBI official said.

The flawed procedures involved the use of emergency demands for records, called "exigent circumstance letters," which contained false or undocumented claims. They also included national security letters that were issued without following FBI rules. Both types of request were served on three phone companies.

Referring to the exigent circumstance letters, Sen. Charles Grassley, R-Iowa, wrote in a letter Friday to Justice Department Inspector GeneralGlenn Fine: "It is ... difficult to imagine why there should not have been swift and severe consequences for anyone who knowingly signed ... a letter containing false statements. Anyone at the FBI who knew about that kind of wrongdoing had an obligation to put a stop to it and report it immediately." A March 9 report by Fine stated that the FBI's use of the exigency letters "circumvented" the law that governs the FBI's access to personal information about U.S. residents.

The exigency letters, created by the FBI's New York office after the Sept. 11, 2001, attacks, told telephone providers that the FBI needed information immediately and would follow up with subpoenas later. There is no basis in the law to compel phone companies to turn over information using such letters, Fine found, and in many cases, agents never followed up with the promised subpoenas.

But Fine's report made no mention of the FBI's subsequent efforts to legitimize those actions with improperly prepared national security letters last year. The report did prompt a news conference at which Director Robert Mueller took responsibility for the lapses. He ordered a nationwide audit, which began Friday, to determine whether the inappropriate use of exigency letters went beyond one headquarters unit.